Apparently, the Constitution Is a Suicide Pact


Whenever Bush administration officials have claimed that releasing information would harm national security, I always assumed they meant that the information would be useful to our enemies—that it would help terrorists plan attacks or avoid detection. To be sure, that argument was not always plausible. In the case of the NSA's warrantless surveillance of Americans' international communications, for example, the idea that Al Qaeda operatives did not realize their phone calls and email might be monitored until The New York Times started talking about it, or that it mattered to them whether such eavesdropping was done with or without the approval of the Foreign Intelligence Surveillance Court, seems pretty silly. And given the long history of using classification not only to protect the country from attack but to protect presidents from embarrassment and inconvenience, such arguments may be insincere as well. But ostensibly, I thought, the rationale for secrecy was that certain information had to be kept from the public so it could be kept from our enemies.

Evidently, that is not necessarily the argument. A recent interview with Mike McConnell, the director of national intelligence, suggests that the administration also feels duty-bound to withhold information when it might be useful to critics who oppose President Bush's anti-terrorism policies, since those policies are necessary to protect national security. But the very same information can—indeed, should—be released at a more opportune time, when it will help the president pursue his policies. Thus McConnell confirms something the administration has long insisted it could not safely discuss: that telecommunications companies helped the NSA conduct its warrantless surveillance. Although that much may have seemed obvious, the Justice Department has tried to stop lawsuits against the cooperating carriers by arguing that even acknowledging their help would endanger national security. But now that Bush wants Congress to give the companies retroactive immunity from liability for aiding and abetting illegal snooping, McConnell is suddenly more forthcoming:

"Under the president's program, the terrorist surveillance program, the private sector had assisted us, because if you're going to get access, you've got to have a partner," Mr. McConnell said….

Mr. McConnell said those suits were a driving force in the administration's efforts to include in this month's wiretapping legislation immunity for telecommunications partners. "If you play out the suits at the value they're claimed," he said, "it would bankrupt these companies."

Congress agreed to give immunity to telecommunications partners in the measure , but refused to make it retroactive.

McConnell does trot out the lame argument that talking about warrantless surveillance directly helps terrorists by giving them information they would not otherwise have (emphasis added):

Mr. McConnell, who took over as the country's top intelligence official in February, warned that the public discussion generated by the Congressional debate over the wiretapping bill threatened national security because it would alert terrorists to American surveillance methods.

"Now part of this is a classified world," he said in the interview. "The fact we're doing it this way means that some Americans are going to die."

Asked whether he was saying the news media coverage and the public debate in Congress meant that "some Americans are going to die," he replied: "That's what I mean. Because we have made it so public."

What a load of crap. How does requiring a secret court's approval for eavesdropping on Americans—or not requiring it, which is what Congress decided to do—alert terrorists to American surveillance methods? It's pretty clear McConnell's real concern is that debating this issue endangers national security because it threatens to prevent the president from doing whatever he thinks is necessary to fight terrorism. Hence Steven Aftergood, director of the Project on Government Secrecy at the Federation of American Scientists, is not at all exaggerating when he observes, "He's basically saying that democracy is going to kill Americans." And not just democracy, but constitutional government of any kind, since anything that interferes with the president's unilateral decisions with respect to national security (which is whatever he says it is) is going to kill Americans too.

This argument, I think, is completely sincere, which is what makes it so scary.

Addendum: The full transcript of the interview, which was conducted by The El Paso Times, is available here.